Standing Committee H

[Mr. Roger Gale in the Chair]

Higher Education Bill

Roger Gale: Mr. Hood sends his apologies. I believe that he is stuck in traffic and may join us later. In the meantime, I have the pleasure of the Committee's company.Clause 32 Approval of plans

Clause 32 - Approval of plans

Tim Collins: I beg to move amendment No. 45, in
clause 32, page 15, line 9, leave out 'if it thinks fit'.

Roger Gale: With this we may discuss the following amendments: No. 289, in
clause 32, page 15, line 10, leave out 'may' and insert 'shall'. 
Amendment No. 288, in 
clause 32, page 15, line 13, leave out subsection (4). 
Amendment No. 105, in 
clause 32, page 15, line 15, leave out from 'may' to end of line 19 and insert 
 'specify matters to which the necessary authority may have regard in making any determination relating to approval.'. 
Amendment No. 75, in 
clause 32, page 15, leave out lines 16 and 17. 
Amendment No. 76, in 
clause 32, page 15, line 20, leave out 'may' and insert 'shall'. 
Amendment No. 46, in 
clause 32, page 15, line 24, leave out paragraph (b).

Tim Collins: It is a pleasure to serve under your esteemed yet unscheduled and unexpected chairmanship, Mr. Gale. We look forward to seeing whether you transmogrify into your co-Chairman, Mr. Hood, with a whirr of BBC special effects worthy of the regeneration of Dr. Who.
 We come to the final day of our deliberations. It is unlikely that the Government will grant us even more time, so we are grateful for the little that we have had and look forward to getting through the immense amount of material that remains. There are some 18 clauses, schedules and new clauses. The Minister will be relieved to hear that given that there is so much material for us to get through, we hope to make progress and do not intend to prolong matters unduly. 
 The clause is important. It is at the heart of the process by which the director of the office for fair access will impose his or her will on higher education institutions. It also introduces an important mechanism for establishing the extent to which OFFA will be answerable to the Secretary of State for the way in which the powers that the Bill allocates are exercised. Some of the amendments explore how 
 OFFA will use the powers that are granted to it and how sensible it is for the Secretary of State to have as much power to direct and instruct OFFA on how it should do its job as the clause provides. 
 The amendment is a clarifying amendment. We are uncertain why ''if it thinks fit'' is necessary in subsection (2), which states: 
 ''The relevant authority may, if it thinks fit, approve the plan.'' 
As the word ''may'' implies that approval of the plan is not automatic, and as clause 32 and other clauses in part 3 give OFFA some discretion, we are uncertain why it is necessary to specify ''if it thinks fit''. Those words are redundant and we are interested to hear the Minister's technical explanation of them.

Tim Boswell: My hon. Friend is aware that I am under a time restraint, owing to other duties. Does he agree that it is also interesting that the clause does not appear to have any time signature on what is a reasonable time in which to consider and approve a plan, and that a constant process of niggling queries and responses to them may be tantamount to failing to approve the plan at all?

Tim Collins: I am sure that members of the Committee are aware both that, sadly, my hon. Friend must attend another Committee to deliberate on another piece of legislation and that we shall be the poorer for the absence of his learned contributions. For many of us, our knowledge of classical times and military tactics of the ancient Greeks will be all the more lacking if he is not here.
 My hon. Friend makes an important point. The clause not does not specify any limit on the time that OFFA may need to consider the approval of a plan. I suspect he would agree that the Minister is likely to say that approval will take place within a framework that has been previously established, that it will be done academic year by academic year, and that it is unlikely that the procedure will drag on for month after month. I am sure that the Minister will also reassure us, as he has done previously, that he expects that most of the time for approval will simply amount to rubber-stamping plans that are already in place in many, if not all, higher education institutions. 
 We must be careful when legislating to think of the difficult cases that could arise. I dare say that the Government expect the Bill to be on the statute book for some years; we are confident that it will be removed within 18 months. None the less, they must legislate on the basis that it will be in place for a long time, so we have to think of the difficulties that could arise. I am sure that many higher education institutions would have welcomed something to limit the time that can be spent considering the plans, and we will discover whether the Minister can address that point. 
 Amendment No. 289 is designed to broaden the discretion of the director of OFFA. Instead of the Bill stating that the relevant authority ''may'' issue guidance to institutions, it should state ''shall''. That allows us to explore the problem of higher education institutions being left in limbo as a result of the Bill's wording. We contend that we would be much better off without a director of access to higher education. We do 
 not want that institution to be created because it will create the possibility for conflict and interference with academic freedom, and for heavy-handed, heavy-booted interventionism. 
 If we are, however, to have such an institution, it is logical for universities to know the ground on which they stand. Being in a state of not knowing whether they are to be issued with guidance or given a framework, or whether at any time they will be subject to intervention or interference, is the worst of all possible worlds. Uncertainty in such circumstances begets problems and worries. We are interested in exploring why the Bill provides that OFFA merely ''may'' rather than ''shall'' issue guidance. 
 At the heart of the group are amendments Nos. 288 and 105. In amendment No. 288, we propose to delete subsection (4), which prescribes: 
 ''The relevant authority's functions under this section''— 
that is OFFA's function— 
''are to be exercised in accordance with regulations.'' 
That is the deadly part of the Bill because it states that OFFA is to be circumscribed and handcuffed. It is not to be an independent institution, but will be subject to direction in fairly specific terms from the Secretary of State.

Chris Grayling: The sinister hand of the Minister.

Tim Collins: Splendid stuff, and the Minister is looking at his hand. We need some chilling music from the ''Hammer House of Horror'' archives.
 What regulations might either the present or a future Secretary of State issue to instruct OFFA? The Minister has been kind enough to share some paperwork with us, but it is stamped with that magical word ''draft'' all the way through. At most, it is merely a reflection of what regulations Ministers might want to issue now, and certainly of what they want to say now about how they will use their legislative powers to impose things in the future. I fear we cannot be confident that, once this general and sweeping power has been granted to Ministers, all that it will be used for is simply to reflect existing regulations. 
 Although it is welcome that the Minister has chosen to share his thinking with the Committee in advance by issuing the regulations in draft form, they give rise to some concern. In their present form, they would be open to disagreement and lack clarity, so they could be interpreted differently. They specify some of the more controversial proceedings relating to OFFA's operations. I do not want to revisit last week's debate, and I am sure, Mr. Gale, that you would bring me sharply to order if I were to do so, but there are difficulties with differing interpretations of access, admissions policies and equality of opportunity. Specifying that regulations will be set out for OFFA does not address all those concerns, not least because there is nothing in clause 32—one would not expect it—to establish a self-denying ordinance by which Ministers cannot return to or amend a set of regulations once they have issued them. As it stands, 
 once that power is granted, as it is in clause 32(4), it is open to present or future Ministers to alter, reinterpret or issue new guidance on those regulations. 
 I reiterate that it is our view that we do not need OFFA at all, but if we are to have it, it makes sense for it to be politically neutral and independent rather than subject to detailed day-to-day ministerial intervention. However benevolent current Ministers are, they may not always be so benevolent in future or may be succeeded by others who are not so benevolent. 
 The general powers granted to the Secretary of State in clause 32 are too sweeping and too widespread. They must be circumscribed and limited. Amendment No. 105 would remove the requirement, cited in line 20, that 
 ''Regulations may require the institution . . . to publish the plan in the prescribed manner'',
 and replace it so that regulations 
''specify matters to which the necessary authority may have regard in making any determinations relating to approval.'' 
The amendment explores the precise ways in which the Government anticipate that OFFA will operate on the important subject of the plan's content and the way in which it is published. Higher education institutions will be at great pains not only to address any perception of unfair access policies, but to do so in public, so that they are seen to address such problems. In an earlier debate, the Minister said that some institutions—including Oxbridge, but it may not be limited to those universities—had very good access policies, but had not been successful in publicising them. He thought that part of OFFA's role would be to require higher education institutions to devote a greater amount of their time, and possibly more resources, to providing publicity for the efforts that they already undertake as part of their access plans. 
 One way to partly resolve that relates to the publication of the access plan itself, which in turn relates to clause 32(6), which amendment No. 105 would amend. It will be interesting to hear the Minister's proposals for publicising access plans. If we are to have those plans, it will be a great advantage if they are widely known. We would not want them to be obscure. Some Committee members might remember the famous description in the work by Douglas Adams of a planning document that was supposedly publicly accessible but which was, in fact, at the bottom of a locked filing cabinet, in a room marked ''Beware of the tiger'', under a flight of stairs without a light bulb. It is desirable for the access plans of higher education institutions to be a little more publicly available than that, so what exactly does the Minister have in mind to achieve that? Will he, for example, require their contents to be made available on the internet or in newspaper advertisements? Will he require any changes that are made to the plans from one academic year to the next to be publicised in the same way? 
 Leaving aside the advantages of freedom of information, has the Minister given any thought to a possible disadvantage? If the access plans negotiated with the access regulator are to be fully effective, they may need to address issues that it is not so easy to publicise. If individual admissions tutors or others at a university or higher education institution are not 
 entirely signed up to the principles underlying the access plans, if might be felt necessary, in verbal discussions or even written communications between the access regulator and the institution's governing body directly, to address previous perceived failings and difficulties with certain named individuals. It would not be sensible to splash such things all over the public prints or the internet. Does the Minister envisage any part of an access plan being kept confidential or being publicised differently from other materials? 
 The Minister will know that there is the greatest nervousness among some in the higher education world about this very topic—the practice of individual admissions tutors—and what is envisaged for the plans. He has gone to great lengths to stress that there is a major difference between access and admission, but we do not accept that distinction. Even if we were to pretend for a moment that such a distinction could easily be drawn, it is difficult to understand how one could properly analyse the success or otherwise of access without considering the work of admissions tutors. Should they be named in relation to access plans as a matter of policy? Should there be specific provisions relating to their practices, desirable or otherwise? The matter is of particular interest to several people in the higher education world who are keen for the measures to be implemented with a light touch. 
 Although the Minister already knows this, let me put it on the record again that Universities UK strongly supports the Bill. We must put all its comments in that context. None the less, it has expressed concerns about clause 32. In its briefing to the Committee, it says: 
 ''Universities UK is concerned that the promotion of higher education and of equality of opportunity in connection with access to higher education is not achieved at the cost of some of the most important qualities that define higher education, namely academic freedom and institutional autonomy.'' 
It goes on to say that it is worried about the discretion given to the relevant authority. Although that discretion will, of course, be subject to judicial review, Universities UK is concerned that the clause makes no specific reference to academic freedom or institutional autonomy.

Phil Willis: First, I thank you, Mr. Gale, for your good wishes last week. I also thank the Committee, especially the many members of the Conservative party who visited me in Harrogate.
 I have much sympathy with the issues raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins). However, given that the Secretary of State indicated in an article in The Sunday Times that, irrespective of their achievements, preferential treatment would be given to students from schools that are under-represented in higher education, does he not think that his comments are much more pertinent as those plans, and OFFA itself, can now be seen as instruments of social engineering rather than as tools for getting high-quality students into higher education?

Tim Collins: I am most grateful to the hon. Gentleman. First, he enables me to put on record that all hon. Members offer him their best wishes. It is a pleasure to see him back, and I trust that all that he went through last week has been successfully concluded. As he is aware, many members of the Conservative party visited his constituency at the weekend in order to wish him well—indeed, those wishes were the centrepiece of the literature that many of us were putting through letterboxes in his constituency later on Sunday morning.
 The hon. Gentleman makes a salient point. A number of Committee members—not only Conservatives—believe that academic freedom should be preserved and that there should be no possibility of political interference. It is not simply a question of whether we believe that today's Ministers would choose not to use the discretion straight away. The problem is that if clause 32 remains unamended, they or subsequent Ministers would have an ability that should be denied to Ministers of any colour. 
 I strongly endorse what the hon. Gentleman said about the need to avoid social engineering. That is particularly welcome, because we were a little confused about whether his objection to the creation of OFFA was purely mechanistic—in other words, he would have preferred it to be within the Higher Education Funding Council for England, but was broadly supportive of its objectives—or whether, like Conservative Members, he objects to the potential for politically inspired interference in admissions policy. I take it from his intervention that he shares some of our wider concerns. 
 I was referring to the opinion of Universities UK on clause 32. It will come as no surprise that it is the clause about which it has the greatest and widest concerns. Universities UK supports and welcomes the Bill overall, and it presently takes the view that accepting the provisions of this part of the Bill are a price worth paying. However, in addition to the objections that I listed earlier, it states: 
 ''Universities UK feels that the Secretary of State reserves very wide powers to make regulations governing the work of the Office of Fair Access.'' 
That is why, in amendment No. 288, we seek to remove those wide powers that the Secretary of State reserves to himself. Ours is not a theoretical objection. I am prepared to be candid and admit that other amendments in the group are probing, but amendment No. 288 is not. It reflects the genuine concern, felt at the highest level in the world of higher education, that the present Secretary of State and future Secretaries of State should not be given the power, through the instruction and regulation of OFFA, to be involved in such detail in the way in which universities conduct themselves. 
 At the heart of the concepts of academic freedom and institutional autonomy is the right of higher education institutions to decide for themselves whom to admit. If a plan has to be imposed upon institutions by OFFA, and if, in respect of those plans, OFFA can be subject to detailed regulation by a Secretary of 
 State, we shall be perilously close to direct political interference in matters that should be beyond the purview of any politician. It is not a question of whether the politicians are from the red party, the blue party or the gold party; it is a question of whether any politician should have that sort of power. Our view is that they should not. Indeed, 
 Given my suspicion that the Minister will seek to rely on the traditional distinction that he draws between access policy and admissions procedures, it is worth quoting one final sentence from the Universities UK submission: 
 ''Future Secretaries of State are given powerful scope by the legislation, as currently drafted, for political interference in admissions policies and decisions.'' 
That was not dreamt up on the Conservative Benches. We did not come up with it during our amiable discussions at Harrogate. The body that represents the higher education institutions of this land has quite specifically stated, on the record, that this is a matter of concern. The Minister has assiduously held discussions with Members of Parliament and higher educations institutions: the fact that Universities UK states its view so starkly shows it has not been wholly reassured by the language that the Minister has used so far. I therefore hope that he can offer some new assurances today, perhaps in slightly revised language, about the way in which the powers will be used. It would be highly desirable for the Government to accept amendment No. 288. Universities UK, in a specific reference to that amendment, says that it is concerned about the possibility of a Secretary of State being involved in interference with the approval of a plan. 
 I am sure that the Minister will say that he hopes that OFFA will operate with a light touch and that he forswears any likelihood that the Secretary of State would want to use regulations to interfere directly in individual decisions. I therefore suggest, in a genuinely helpful spirit, that he give the following categorical assurance: that if OFFA reaches an agreement with a higher education institution and is content with the terms of the access plan that has been negotiated with that institution, and if the institution has accepted in full and without qualification all the obligations that OFFA has suggested as part of that negotiation process, there would be no question of a Secretary of State interfering to instruct OFFA not to accept that plan or to instruct OFFA to reopen negotiations on one or more individual points? 
 I think that the Minister would recognise that that would be welcome assurance and I make my request in a genuinely helpful spirit. The legislation as it stands does not prevent a Secretary of State from interfering at that point. Universities UK is undoubtedly worried that there might be, for whatever reason, good or bad, political interference in a process which at that stage had already reached agreement. If the Minister could give that clear and categorical assurance, it would not answer all our concerns, but would go a considerable way towards removing some of them. 
 I said, Mr. Gale, that I did not want to prolong matters unduly. These are genuinely important issues. At this point I am happy to see whether other hon. Members wish to speak and to leave the Minister plenty of time in which to respond.

Roger Gale: Before we proceed with the debate, we have received a message to say that Mr. Hood's wife is unwell, which is why he is not with us this morning. I am sure that the Committee will wish to send him and his wife our good wishes. Mr. Stevenson has kindly agreed to take over at 10 am to allow me to carry out some prior engagements.

David Rendel: I, too, do not wish to speak at great length, but we have tabled two amendments in this group. I should like to speak to them briefly, but first I should like to respond to the remarks made by the hon. Member for Westmorland and Lonsdale about the Conservative amendments. We have some sympathy with amendment No. 45, as we, too, cannot see any reason why the words ''if it thinks fit'' are included. I do not think that it will make much difference whether or not they are included, as the meaning of the clause will probably be the same either way, but it will be interesting to hear why Ministers feel that they are necessary.
 We are not sure that amendment No. 289 is necessary. It would provide that the relevant authority ''shall'' issue guidance to institutions, but that would be odd if the relevant authority had no guidance to give. The words ''may'' and ''shall'' are more or less equivalent in this case, although it is important that the Secretary of State issue guidance when it is needed. 
 Amendment No. 288, about which the hon. Gentleman spoke at some length, is interesting. We have some sympathy with it, but our response depends on the Minister's reply. If we are to have the procedure under which the plans are published, we are in favour of regulation. However, there seems to be a lot of power in the hands of the Minister to change the way in which the plans work; in particular, there is a concern, as there has been throughout the Committee stage, that regulations may, in effect, alter admissions rather than just applications. We want the Minister to make it clear that the regulations and plans will have nothing to do with admissions. He has tried to make that clear that already, but I hope that he will reiterate it in relation to this part of the Bill. It is an important point when considering amendment No. 288. 
 It is important to have plans that safeguard public money properly, so I do not think that amendment No. 105 is sensible. We have never objected to plans as such; what we have objected to is the use of OFFA, which we regard as unnecessarily bureaucratic, and we would object to any attempt to make plans for admissions rather than applications. 
 I might have missed it, but I am not sure whether the hon. Gentleman mentioned amendment No. 46. It is clearly an attempt to get rid of devolution. We are in favour of devolution in general, so we would not support him if he pressed it to a vote. I doubt that he will. 
 We tabled amendments Nos. 75 and 76. There is not much point in having plans and OFFA or, as we would prefer, HEFCE and the Teacher Training Agency, if the Secretary of State is going to make all the decisions. Amendment No. 75 is an attempt to ensure that some decision-making powers are left in the hands of the regulatory authority rather than simply those of the Secretary of State. As it stands, subsection (5)(a) appears to allow the Secretary of State to make decisions about plans and how they should be agreed, which would allow him and any future Secretaries of State to make decisions on a party political basis or for the purposes of social engineering. As my hon. Friend the Member for Harrogate and Knaresborough (Mr. Willis) said, we do not want that. 
 Although there are good reasons to remove subsection (5)(a), there is a lot of sense in keeping paragraph (b), so we do not propose to remove the whole subsection. The relevant authorities need some guidance about the matters that they should take into account.

Tim Collins: There is not a lot to distinguish our parties on this group of amendments. As the hon. Gentleman rightly says, amendment No. 75 would remove subsection (5)(a) but keep paragraph (b). However, does he believe that it would be sensible for the Secretary of State to have the power to
''specify matters to which the relevant authority is . . . to have regard''?
 He is rightly saying that institutions need to know where they stand, but is it desirable for the Secretary of State to be the final arbiter?

David Rendel: There is a point to the Secretary of State giving some sort of guidance to the relevant authority—otherwise the relevant authority will be left entirely on its own to decide what the plans are about. My party approves of higher education institutions having a plan to ensure that they treat applications fairly and receive them from people from all sorts of groups, including those that are not well represented.

Phil Willis: Given that the Liberal Democrats believe that the state should pay for the whole of the higher education product, is it not important that the Secretary of State, as the custodian of Government funds, should have something to say about how those funds are spent?

David Rendel: I am delighted that my hon. Friend has reinforced a point I made about an earlier amendment. Given that we are discussing the spending of public funds—if we had our way, all the funds spent in this respect would be public—it is important that the Secretary of State has some control over they way in which they are spent. That is what government is all about.
 I turn to amendment No. 76. Plans should be public, because they can affect the decisions that potential students make about which universities to apply to. A plan might contain nothing about how admissions are decided, but if the university—or higher education institution of any sort—was going out of its way to 
 ensure that it attracted applications from a particular group which might be under-represented at that institution, that information, in itself, would serve as an important piece of guidance to potential students about how that university was working and the sort of people that it was trying to attract. It is important that such information is made public to the student, because they will then be able to choose whether to make it part of their decision-making process. 
 [Mr. George Stevenson in the Chair]In general terms, transparency is always worth aiming at. It appears that there is at least the potential for plans to remain hidden and for students, if not to be actively misled, at least not to be given as much information as they would have if we changed subsection (6) by replacing ''may'' with ''shall'' and ensured that all the plans were published in full.

Chris Grayling: Has the hon. Gentleman realised the implications of the amendment? A requirement to make a plan public would be an implicit acknowledgement that the plan might have an impact on the admissions process. If the plan is simply about seeking applications from a broader range of students, there is no need to make it public, whereas if the plan will have an impact on the admissions process, his points are valid.

David Rendel: That is not entirely fair. Universities' plans are made public now, and I do not see any reason why they should not be in future.
 I listened carefully to what the hon. Member for Westmorland and Lonsdale said about the potential for the plan to contain specific information about an individual who had not performed well in the past. That is unlikely to happen. I am not sure that I would want that to be included, but if it was I would not want it to be hidden, as that would imply that the university had guilty secret that it did not want to release but felt that it had to have in its plan. If universities are going to take any decisions about how they work to attract applications based on what one individual in the institution is or is not doing or had or had not done, that will be unfortunate, but if something is important, it should be a matter of public record. 
 There are good reasons to aim for transparency in this case to ensure that everyone knows precisely what the situation is, and I hope that the Government will support the amendment.

Anne Campbell: I welcome you to the Committee, Mr. Stevenson, and seek your guidance. May I discuss something that relates to the clause but not, strictly speaking, to the amendment?

Roger Gale: If the query does not strictly speaking relate to the amendment, clause 32 stand part will be the appropriate time.

Simon Thomas: Amendment No. 46 would remove the provisions that relate to Wales and the National Assembly. Although I resist it on the grounds that it is an anti-devolution amendment, as the hon. Member for Newbury (Mr. Rendel) said, I also resist it because it is flawed. It
 would establish a scheme in Wales whereby plans with contents, durations and variations could not be approved. Removing subsection (7)(b), which states:
''in relation to Wales, by the Assembly'',
 would leave subsection (7)(a), which states: 
''in relation to England, by the Secretary of State''. 
That would leave no way to approve plans in Wales. The Secretary of State could approve the plans for England, but no one could do that for Wales. The amendment would leave Wales in limbo, which is what Tory Members have generally sought to do.

Alan Johnson: May I welcome you to the Chair, Mr. Stevenson?

Roger Gale: Nice to be here.

Alan Johnson: I am sure that you had everything planned in your diary, Mr. Stevenson, but welcome, as we round the last bend and on to the straight for the home—or rather, the home straight. [Laughter.] I will move on rapidly.
 Opposition Members have raised some relevant points in this important debate and I hope that I can allay some of their concerns and demonstrate how seriously we take them. The amendment, which the hon. Member for Westmorland and Lonsdale rightly said is a probing amendment, would remove ''if it thinks fit'' from subsection (2), which says: 
 ''The relevant authority may, if it thinks fit, approve the plan.''
 The hon. Member for Newbury said that the amendment would have a minimal effect, in that it would not prevent the director from approving an access plan. However, it would leave uncertainty about the scope of the director's discretion. Removing ''if it thinks fit'' would make subsection (2) less clear. It is a simple matter of terminology in a piece of legislation in which it is important to be as clear as possible. I can give no more clever an answer than that. The words are correct. 
 Amendment No. 289 is one of two amendments in the group on which we can have either the famous debate, which we have in all Committees, about whether ''shall'' should replace ''may'' or the less frequent debate of whether ''may'' should replace ''shall''. The amendment would require the relevant authority to issue guidance, yet it would have no discretion. I appreciate the intention behind the amendment and it raises a relevant consideration. We do issue guidance and we intend it to be issued in future. However, my simple point is that our provisions repeat the arrangements that are well known elsewhere. Similar arrangements apply to the Countryside Agency and the Disability Rights Commission. In those cases, legislation says that guidance may be provided.

Tim Collins: I hear what the Minister says, but it would help all concerned if he can say whether he expects such guidance to be issued.

Alan Johnson: I am happy to do that. We expect guidance to be issued and we envisage no circumstances in which it will not be issued, although we are keen to hang on to the word ''may''.
 Amendments Nos. 288 and 105 get to the nub of the issue. I was, however, curious about the emphasis that the hon. Member for Westmorland and Lonsdale placed on amendment No. 288, which would delete subsection (4). That subsection states: 
 ''The relevant authority's functions under this section are to be exercised in accordance with regulations'', 
and its contents caused hon. Members to see the sinister hand of the Minister at work, with the dark music from the Hammer horror films playing in the background. It is usual for us to issue regulations so that we do not have to put everything into primary legislation. Those regulations are, of course, approved by Parliament. I accept that they are accepted under the negative procedure. Nevertheless, Parliament can pray in aid and the regulations are placed before both Houses of Parliament. I accept that the draft regulations may not be the final version, but we produced them precisely because we wanted the Committee to have an idea of what they would look like. 
 The hon. Member for Westmorland and Lonsdale quoted Universities UK, but subsection (5), not subsection (4), is the key issue. We are offered two solutions: one by the hon. Gentleman for Westmoreland and Lonsdale and one by the hon. Member for Newbury. The problem with the solution proposed by the hon. Member for Westmorland and Lonsdale in his amendment No. 105 is the very clear anomaly in the wording. It would remove subsection (5) after the words ''Regulations may.'' I was confused because he went on to talk about subsection (6). So far as I can see, however, the amendment would remove paragraphs (a) and (b) and replace them with another form of words after ''Regulations may,'' so that the subsection would read, 
 ''Regulations may specify matters to which the necessary authority may have regard in making any determination relating to approval.''
 The nub of my argument is that the amendment would introduce a serious technical fault. The term ''necessary authority'' is not defined and it is not used anywhere else, but the term ''relevant authority'' is. It is a serious error to introduce a new term that is not defined anywhere in the Bill, especially as it would be introduced into a clause to which similar amendments have not been tabled and in which the words ''relevant authority'' appear over and over again. It would draw people's attention to something that is extremely strange. 
 Conservative Members are playing on our wicket by removing paragraph (b). As the hon. Member for Newbury rightly pointed out, they do not want a regulator or fees, but if there were a regulator, a combination of their amendments Nos. 288 and 105 would mean that there would be no regulations or guidance to guide that regulator.

Tim Collins: The Minister makes a perfectly valid point about the technical drafting error of introducing the word ''necessary'' as opposed to ''relevant''. On the philosophical point, however, we do not think that there should be a regulator, as he rightly says. Does he accept that if we are to have one, he should be transparently politically independent and not subject to regulation by the Secretary of State?

Alan Johnson: No, I do not accept that. The regulator should be subject to guidance. Last week we debated whether that guidance should be statutory or non-statutory, and an amendment was tabled about not issuing guidance. We believe that there should be guidance. The regulator has the power to ignore it, as is the case with any legislation, but we should be absolutely clear about what the measures in the Bill mean, for the very reasons cited by the hon. Gentleman and Universities UK. There should be no ambiguity.

Tim Collins: I really would welcome clarification from the Minister. He just said that that the authority may ignore the guidance, but subsection (4) states:
 ''The relevant authority's functions under this section are to be exercised in accordance with regulations.'' 
There is no discretion. The regulator cannot ignore those regulations.

Alan Johnson: The regulator cannot ignore the regulations, which are approved by Parliament, but he can ignore the guidance, whether it is statutory or non-statutory. Subsection (4) is designed purely to avoid primary legislation being overloaded with issues that should, quite properly, be subject to change in Committee. Amendment No. 105 is not the answer, but I want to make it clear that there is no attempt to interfere with academic freedom, as the hon. Gentleman suggested.
 The hon. Member for Harrogate and Knaresborough, who I am delighted to see fit and well and back in the Committee—we would have come to Harrogate but all the trains were full—referred to an article in The Sunday Times. That article was about the Schwartz committee. The hon. Gentleman was not present last Thursday when we had a long discussion about admissions and access. We set up the Schwartz committee, with the full support of the higher education sector, to examine admissions, and it is considering issues such as post-qualification applications. The reference in The Sunday Times article was not to the Secretary of State's views, but to what the journalist predicts will come from the Schwartz committee. There is no attempt to interfere with academic freedom and, in response to a point made by the hon. Member for Newbury (Mr. Rendel), I repeat that there is no question of admissions being part of the regulator's role; that role covers access. 
 Amendment No. 105, however, is not the answer to the problem, but we think that amendment No. 75 is. We can now replace the sinister music with the Hallelujah chorus, because we are prepared to accept amendment No. 75, and I may as well give a reason for 
 that. An important point, which was made by the hon. Member for Westmorland and Lonsdale, is that the amendment would delete clause 32(5)(a), which could be misread and regarded as sinister. That paragraph prescribes 
''cases in which the relevant authority must, or may not, approve a plan''. 
Subsection (5)(a) was included in the Bill because of regulation 6 in the draft regulations, which states: 
 ''If the Director does not approve a plan, he must not approve a further plan submitted by the governing body in respect of the first academic year covered by the plan which was not approved.'' 
The reason for that provision is that there must be closure, and that must be when the prospectus goes out to students applying to attend that university. What must not happen is that a plan is rejected and students think that they are entering university with a fee of £1,200 a year, only to find out later that the fee is now £2,000 because an access plan has been agreed with a higher rate attached. That is the only reason for subsection (5)(a) being in the Bill. However, we think that we can deal with the problem in a different way, such as through guidance. 
 I accept the points made by hon. Members that the paragraph could be used to suggest that a future Secretary of State will use the power to prescribe that a plan must not be approved because it comes from London Metropolitan university, Cambridge university or wherever. That would be a wide-ranging power to take—a sledgehammer to crack a fairly small nut. Therefore, amendment No. 75, which is aimed purely at subsection (5)(a), should be accepted. We urge the Committee to vote for that, and those are words that I did not think I would hear myself say. 
 Amendment No. 76 is another that deals with the difference between ''shall'' and ''may''. It refers to subsection (6), which the hon. Member for Westmorland and Lonsdale mentioned earlier. We want to retain the word ''may'' because of the reasons that I laid out when discussing the previous amendment that sought to replace ''may'' with ''shall''. We are, of course, asking for the plans to be published. Draft regulation 7 states: 
 ''Where the Director has approved a plan, the governing body must publish it in a manner which makes it conveniently accessible to students and prospective students.'' 
The hon. Gentleman asked how that would be done, and the answer is via a website, e-mail, or through the media. We do not expect individuals to be named—an important point that he raised—but what he said about sensitive information would be a good reason for keeping the word ''may''. Some sections of a plan should remain discreet, but the major elements, particularly letting students know about bursaries, will be set out in the access plan. It is therefore important that the plan should be published and made widely accessible. There is nothing between us on that, and I give the same assurance that I gave on the previous amendment. We expect agreements to be publicised. 
 The hon. Member for Daventry (Mr. Boswell) is not with us, but he asked about time scales. We have used the usual terminology. Draft regulation 5(a) states that the director 
''must inform the governing body within a reasonable time'',
and draft regulation 5(b) states that the governing body 
''may, within a reasonable time''. 
Rather than specifying days or weeks, we have used the accepted terminology. It makes it clear that the university and the director must publish the prospectus, so that students will know of the arrangements before they apply. 
 Perhaps after the weekend the Conservative party is warming to devolution, because the hon. Member for Westmorland and Lonsdale did not say anything about amendment No. 46. However, the hon. Member for Ceredigion (Mr. Thomas) was correct. It is not just that the amendment would interfere with devolution; it would put the Committee in the strange situation of allowing a regulator to operate in Wales without direction or guidance. That would be a serious flaw. 
 I hope that the hon. Gentleman will withdraw the amendment, but I hope that the Committee will support amendment No. 75.

David Rendel: On a point of order, Mr. Stevenson. The Minister generously said that he will accept one of our amendments. It is not the lead amendment, so I wonder whether we need to ask you to put the question formally.

Roger Gale: I shall sort that out when we come to it.

Tim Collins: As I said earlier, amendment No. 45 is a probing amendment. I therefore beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 75, in 
clause 32, page 15, leave out lines 16 and 17.—[Mr. Rendel.] 
Question proposed, That the clause, as amended, stand part of the Bill.

Anne Campbell: Approving the plans means also approving the level of fee that a university or college wishes to levy. I wish to probe a little more the degree to which collaboration between colleges and universities on fees is acceptable. The question was raised with me late last night by the Association of Colleges. I apologise for not giving the Minister private notice of it: he may need to write to me.
 The question arises from the Office of Fair Trading's action against schools in the independent sector that have collaborated over fee setting. The Department for Education and Skills is not involved in that action; it is being brought by the OFT. The Association of Colleges would like to investigate whether the chapter 1 prohibition in the Competition Act 1998—the Minister may be familiar with it from one of his previous roles—would prohibit colleges from exchanging information about price co-ordination. The advice from the Department for Education and Skills suggests that it could. In general, the exchange of price information may lead to price co-ordination, which could be said to eliminate the competition that would otherwise occur between undertakings. That 
 would be the case whether the information exchanged related directly to the prices charged or to elements of the pricing policy. 
 The Association of Colleges is concerned because colleges and universities have been encouraged to deliver higher education programmes in partnership. Ministers have said that they hope that all institutions will use the power to vary fees. They could, for example, use low fees to attract foundation degree students but have higher fees elsewhere. However, a disgruntled law student or a litigious parent, who was unhappy about the blanket £3,000 that a university charged for a law degree course to cross-subsidise foundation degree courses, might take a complaint to a solicitor. They might then make a complaint to the Office of Fair Trading under the Competition Act 1998 or the Enterprise Act 2002, and there may be a threat of judicial review if action is not taken. There would then be a big investigation into university price fixing, involving great legal costs and the even greater cost of providing documents for the investigation and possibly for a parallel civil suit. The most likely risk is that there would be lots of unnecessary cost and disruption. Many people out there would appreciate the Minister's advice on the issue, because it is not clear from the clause whether such price fixing would be allowed.

Tim Collins: The hon. Member for Cambridge has made an interesting contribution and she raises a significant point. As she rightly said, there is a need for clarification, and I want to press the Minister on one issue. Is he confident that any advice that he may give the hon. Lady and the Association of Colleges will stand up to scrutiny in the UK and European courts? It has been a common theme of our deliberations that higher education institutions are independent, and although their public role is hugely significant, they are not formal parts of the public sector.
 The hon. Lady correctly identified some of the association's concerns, which are perhaps understandable, and I am sure that the Minister will be mindful of the fact that, sadly, this is not a matter on which any Minister can issue a firm guarantee that no action will be taken, because autonomous or, indeed, independent institutions are subject to UK and EU competition regulation. I would be grateful if he could deal with that point.

Alan Johnson: First, let me put on record what clause 32 is about. It covers the approval of plans, specifying that an institution will need to apply to the relevant authority to have its plan approved and giving that authority the power to approve it. The clause also empowers the relevant authority to issue guidance to institutions and puts a duty on the authority to carry out its functions in accordance with regulations. It allows for regulations to set out any matter to which the authority may or may not have regard in deciding to approve a plan. Under the clause, regulations may also place a duty on institutions to publish any approved plans.
 We have made the draft regulations for England available in draft form to the Committee. They allow for discussion, if necessary between the director and institutions, before a final decision is made. It is under this clause that we could introduce a minimum percentage of additional fee income that institutions should spend on outreach and bursaries through their access plans. We are not planning to use that at present, but it is a reserve power. 
 I have to tread cautiously on the question raised by my hon. Friend the Member for Cambridge (Mrs. Campbell) about guidance on the Competition Act 1998. The hon. Member for Westmorland and Lonsdale touched on the point as well. The advice to universities should come from the Office of Fair Trading. It publishes a booklet, and the universities should be au fait with it. I do not know for how long they have been, but they are governed by the Competition Act. A point that I made as a back-handed compliment to the sector is that I do not think that the institutions are capable of forming a cartel, but if they formed one, that would breach the Competition Act. 
 I will not offer any guidance other than to look at that from the OFT. We have always envisaged higher education institutions—my hon. Friend the Member for Cambridge referred to university colleges—being able to reach joint plans, and in particular joint access plans, when they cover a specific region. It would make sense for institutions in Leeds, Harlow or Nottinghamshire to reach a joint access plan for getting youngsters from poorer backgrounds throughout the region into higher education. That may include charging a similar fee, as long as it does not breach the OFT rules. 
 The answer is no to the question whether we are ruling out joint access plans. We have made it clear in everything that we have published that universities could collaborate on that, but they will have to be careful that collaboration does not stray into a cartel or price fixing, because the Competition Act would then take effect. I am willing to write to hon. Members about that, although I do not think that there will be much more than that statement in the letter. It might be a bit longer once it has filtered through 17 solicitors, but it will contain essentially the same message.

Phil Willis: I welcome you to the Chair, Mr. Stevenson.
 The hon. Member for Cambridge has raised an important point. In addition to the letter, will the Minister get an official ruling from the OFT before Report? If not, will he consider including provisions in the Bill in the same way as has been done in clause 39, which is designed to overcome the Enterprise Act 2002 provisions on bankruptcy? I do not want to go into it too much, but the Government are clearly trying to overturn a previous piece of legislation with clause 39. Considering other legislation, in particular the Competition Act 1998, it is possible to include in the Bill provisions to give universities the safeguards that 
 they need to go about the legitimate business of co-operating to attract students, especially from lower socio-economic groups.

Anne Campbell: I want to add to what the hon. Gentleman has just said. It would make the situation clear once and for all if the Government included in the Bill a provision that specifically excluded groups of institutions operating legitimately and with the Government's best wishes to achieve the effect that my right hon. Friend has mentioned. It will be difficult for colleges to achieve that effect unless they can be sure that they will not fall foul of the Office of Fair Trading. I hope that he will discuss the matter with his advisers and consider carefully whether a specific provision could be included in the Bill to exclude colleges that are co-operating legitimately from the Competition Act.

Phil Willis: The essential element is that the institutions would be working together at the Government's behest. It is an instruction from the Government, through OFFA, that they should co-operate to provide a product. That is significantly different from organisations themselves deciding, as the private schools have allegedly done, to fix prices within their market.

Alan Johnson: I will consider the point that my hon. Friend and the hon. Member for Harrogate and Knaresborough make. I do not see this as being in the legislation, but I will reflect on it further. We have thought about this a lot. I do not think that the Office of Fair Trading would be willing to write a letter unless it had details about a specific case. I will write to the Committee next week. Once the Bill receives Royal Assent we plan to issue substantial advice in conjunction with HEFCE and the Office of Fair Trading so that colleges, universities and higher education institutes understand the issues here. I will reflect on what hon. Members said, but we are keen to ensure that we overcome the difficulties.
 Question put and agreed to. 
 Clause 32, as amended, ordered to stand part of the Bill.

Clause 33 - Duration of plans

Question proposed, That the clause stand part of the Bill.

Tim Collins: I seek a clarification from the Minister on a point that has been the subject of correspondence to all members of the Committee from Universities UK. It is happy with the clause, on the basis that the maximum duration of plans will be five years. That is not specified in the Bill. It would be helpful if he could confirm that that is also his interpretation. Could he also confirm that he would not expect the general power that is granted under subsection (2) to the Secretary of State or the Assembly in Wales to issue general regulations would be used to extend the maximum duration of plans beyond five years? That seems to be what Universities UK is expecting.

Alan Johnson: The clause specifies that a plan must prescribe the period during which it is to be enforced. Paragraph 8 of the draft regulations states:
 ''The maximum period of time during which a plan may be in force is five years.'' 
We have made it absolutely clear that that is our intention. That does not prevent the approval of a new plan when the previous plan expires. In other words, plans may be renewed subject to the approval process. Neither does it prevent the director of fair access and an institution from agreeing to vary the plan at any intervening point. The maximum period is five years. We do not expect to change that, although if in the light of experience six years or four years seemed much better, and there was consensus about that, we would seek to change the regulation. That is the reason for putting this in regulations, rather than in primary legislation. We think that five years is just about right, and so does the sector. 
 Question put and agreed to. 
 Clause 33 ordered to stand part of the Bill.

Clause 34 - Variation of plans

Jonathan R Shaw: I beg to move amendment No. 270, in
clause 34, page 15, line 35, after 'varied', insert 'by the relevant institution'.
 I welcome you to the Chair, Mr. Stevenson. This is a probing amendment to seek some clarification from my right hon. Friend. It would be helpful for universities to understand the extent to which a plan may be varied. Would OFFA intervene and vary a plan before the access period was over? It is important for the new plans to settle down, but the institution may want to introduce a variation. For example, it may want to increase the bursaries to students who are in difficulties. We would not want fees to be increased, as that would be a huge departure, but subtle changes—they may be to do with bursaries, for example, or with outreach programmes in communities linking up with the local further education college—may need to be made, and plans varied in the light of experience. Will the institutions have the powers to do that? 
 It has been suggested that the OFFA's extending powers may mean the evil hand of a sinister Minister wandering all over admissions, which would not be the case under a Labour Government. It will not necessarily be the evil hand of a Labour Minister—[Interruption.] I should say a helping hand, perhaps with a backdrop of Joe Cocker, rather than the Hammer House of Horrors, to which the hon. Member for Westmorland and Lonsdale referred, but the personality of the director of OFFA will set the mood and affect the atmosphere. Although I have every confidence in Labour Ministers, the people who are appointed do not always turn out to be what one might expect. That also happens in the case of former Ministers, as we have seen too often recently. 
 I would appreciate clarification of the extent to which OFFA could vary plans within the set period. Will the universities be allowed to make variations in accordance with their experience, especially early on, as institutions and students get used to the new regime?

Tim Collins: This is a genuinely important amendment and I commend the hon. Gentleman for tabling it. I was disappointed that he said it was largely a probing amendment, because although it is not perfect, if he were to press it to a Division we would support it.
 If there is to be a vestige of academic freedom and institutional autonomy after the Bill is enacted, it is crucial that once a plan has been perhaps laboriously negotiated between the director and the university, and during the time frame of the plan which, as the Minister said, may be as long as five years, the university should know exactly where it stands. It should know that once agreements have been reached it will be left to get on with implementing them. 
 The difficulty with clause 34 is that it puts in place a procedure whereby a negotiated and agreed access plan can be overturned or varied. There is no limitation on the extent of variation, so conceivably it could be changed almost in its entirety at any point in its lifetime. That does not give higher education institutions the certainties that they require. 
 The amendment goes only some way towards ameliorating the position, as it would retain the phrase 
 ''with the approval of the relevant authority'', 
which we object to. An access plan that is negotiated ought to be a contract: it should be reached by mutual consent, having been negotiated equally, implemented properly and subsequently respected by both parties. The clause clearly implies that this is not a contract within that term's widely understood interpretation: if one party to a contract can unilaterally, at any time, vary any part of the terms of that contract, it is not a contract of the sort with which people will be familiar within other contexts. That is the problem. 
 The amendment at least requires that the act of variation be made by the university or higher education institution. However, by retaining the need for that variation to have the approval of the relevant authority, we believe that it would give far too much discretion to the director of fair access to rip up freely negotiated agreements and to go down pathways that would be deeply injurious to the principles of university independence. Our view is that the Bill would be better without the clause. We think that there should be enforced access plans, and that there should not be a director at all. However, if we are to have such plans and a director, it must surely be a matter of common sense that everyone can see, that if the negotiations are to have value once a plan has been agreed, that there should not be the constant prospect of its being reorganised.

David Rendel: I am genuinely confused what by what the hon. Gentleman is saying, so I hope that he can clarify it. He seems to be saying that these are matters
 that have to do with a contract between two parties, so it is important that it should not be varied on either side, just unilaterally. I should have thought that the removal of the words
''with the approval of the relevant authority'' 
would mean the removal of one of the parties to the contract. I can understand why he wants to insert the other words—to ensure that the other party has a chance to have a say—but removing the second part removes the second party to the contract, does it not?

Tim Collins: As the hon. Gentleman rightly says, it would be desirable to ensure that any variation can occur only by mutual consent. That is the point on which he and I would agree. The amendment does not specify the need for the approval of the relevant institution: it simply says that the variation would be made ''by the relevant institution''. In a sense, that is natural, because the institution that implements the access plan is the relevant institution—in this case, a university. Our point is that it would be preferable for the legislation to make it clear that it requires the mutual consent of both parties to the plan before variations can be made. We believe that that objective would be achieved with the removal of the clause. I am not convinced that doing so with the amendment would meet the exact equality that we should like, but it would be more balanced than the clause as it stands. It would be better to have clause 34 amended by amendment No. 270 than to have it as it is now, although frankly, it would be better not to have it at all.
 We know that the universities, in their guidance to this Committee, did not specify that they support the amendment, but they said: 
 ''Universities UK believes that it should be clear that institutions will have the freedom to vary their plans if the need arises. We do not, however, think that OFFA should have the power to require them to vary their plans within the period of the access agreement.'' 
That is the point on which we rest our case. If the universities believe, for whatever reason, within the spirit of the access plan—in order, perhaps, to ensure that the objectives are better delivered in the light of changing circumstances—that they should have the right to consider changes and make recommendations to OFFA, leading to further negotiation and a new agreement, it should not be within the scope of the director unilaterally to alter plans. 
 Government Members—who may be more attached to the principle of the plans and to the director than Opposition Members—may take the view that there would be concern if the access plan was not implemented. That is covered by clauses 35 and 36, to which we will, I hope, turn our attention later. 
 There are already procedures within the Bill to enforce the plans. This is a different point: it is about varying the plans after they have been agreed, independent of any assessment of whether they have been properly implemented. We are concerned about the matter, and we hope that the Minister will be in a position to give a clear assurance that he would not expect that the Secretary of State would use the powers of regulation to interfere with the implementation of 
 plans or to exact a political penalty on an institution that had, for any particular reason, offended the Government of the day. 
 It is easy for Governments, of whatever colour—this is not a point about the present Administration at all—to take offence at the actions of higher education institutions. It will be within your recollection, Mr. Stevenson, and that of other members of the Committee, how Lady Thatcher, when she was Prime Minister, was not exactly bowled over with joy and delight about Oxford when it denied her an honorary degree. It will be within the more recent memory of members of the Committee that the Chancellor has expressed fairly firm views about Oxford's admissions procedures. 
 If an instrument such as that provided under clause 34 allows that OFFA—which, as we have established, is very much the creature, indeed the plaything, of the Secretary of State—can intervene to change unilaterally the terms of an agreement on an access plan, even when such an agreement has already been reached between an institution and OFFA, there will be a real temptation in the hands of a future Secretary of State or Prime Minister to use that instrument as a weapon against a higher education institution if, for whatever reason, they happen to have a falling out. 
 I urge the Minister, if he insists on retaining the clause, at least to give the higher education world an assurance that the power of unilateral variation would be used rarely. I hope that he would be able to explain any of the circumstances in which he would think that such a variation would be appropriate. Will he also seek to make it clear that his general expectation would be that in all but the most exceptional circumstances, once an agreement had been reached—although proper attention would be paid to whether the agreement was being properly implemented—there would not be a constant process of reopening, renegotiation and renewed discussion? If that were to be the case, it would only create anxiety in the world of higher education, as people would genuinely not know at any given time what they were expected to do. 
 Certainty is essential in higher education, and I am sure that members of that world would much welcome any assurances that the Minister can give that he does not expect the clause to be used often. I hope that he will be able to say that he would not expect clause 34 to be used at all, in which case we can save ourselves a lot of bother by getting rid of it.

Roger Gale: Before I call the Minister, let me say that a pretty wide-ranging discussion is taking place on the amendment, and I shall take that fully into account in any debate on clause stand part. I do not want simply to rehearse the arguments that have already been put before the Committee.

Alan Johnson: The amendment is designed to ensure that the plan can be varied only by the institution whose plan it is. I agree that that must be the case. My argument is that the legislation already provides for that, so I must resist the amendment.
 Before I come on to the reassurances sought on both sides of the Committee, I want to note briefly that the amendment is technically defective, since it refers to variation by the institution. However, it is the governing body that is responsible for the plan and for any variation of it. That is a minor technical point. This is a good point in the proceedings at which to discuss the mechanisms provided by the legislation for varying access plans. I am grateful to my hon. Friend the Member for Chatham and Aylesford (Jonathan Shaw) for raising the point and allowing me to clarify the position. 
 In England, an institution's access plan is the responsibility of that institution. It is quite clear that it is the institution and only the institution that can seek the approval of the director to vary a plan, just as it is only the institution that can propose a plan in the first place. The Bill will permit the director not to vary a plan but to approve a proposal from an institution. Subsection (1) states: 
 ''Regulations may make provision enabling an English approved plan or a Welsh approved plan to be varied with the approval of the relevant authority'' 
It does not say ''by'' the relevant authority. 
 Paragraph 7 of the Secretary of State's letter to the director sets out the specific arrangements for changing access plans, and regulation 9, which we have published in draft, sets out the arrangements for the variation of plans. In all cases, it is the institution alone that can propose to vary a plan. Changing circumstances may mean that institutions will want to change their plans. For example, an institution might wish to vary its access plan in respect of outreach arrangements. It may wish to pursue those activities in a new area or try a new approach such as mentoring, or it may wish to change its fee levels and bursaries. It is right that institutions should have the option to apply to the director to make such changes, rather than have the plan frozen in aspic for five years irrespective of the circumstances. An institution might start by thinking that summer schools are a better idea than mentoring, then think, ''Actually, the summer schools haven't attracted enough applicants, let's move to a different arrangement.''

Chris Grayling: Surely, the Minister is not suggesting that a university that decides to vary its activities within the confines of an overall plan—for example, by introducing a new scholarship—would have to go back to the regulator to seek permission to do so. That would be ludicrous.

Alan Johnson: I do not think that that would be ludicrous. Once a plan is agreed, any proposed variation must go back to the regulator. That would be a simple process. In the circumstances that I have described, it would be a very simple process.

Chris Grayling: It is mad.

Alan Johnson: The hon. Gentleman may think it mad, but what is the point of setting up arrangements to ensure that the access plan meets the approval of the regulator and is in accordance with the regulations and the widening participation agenda, if we then tell institutions that they need not come back to the regulator if they want to change any aspect of it in next five years? That would be rather mad. I appreciate the fact that Opposition Members do not want the plans or the regulator, but if an institution has a plan, which is to be in force for five years, we must be flexible enough to allow it to propose changes to that plan, but we cannot allow it to make changes in isolation without informing the regulator that the plan that they had agreed openly is being changed. I simply cannot understand an opposite point of view.

David Rendel: If, as the Minister has said all along, these plans would be light-touch regulation, surely they should be drawn up in such a way as not to specify the precise detail of which scholarships will be given—whether there will be three of £500 and six of £600, for example—but to give a more general idea, thus allowing some variation between the exact number and value of the scholarships as time went on, without having to go back to the regulator.

Alan Johnson: I think that common sense will prevail. That is the kind of arrangement that will apply in such circumstances, but both parties to the agreement have to know what it is. If the agreement changes—Members on both sides of the Committee seek assurance that only one party will be able to change it—both parties must know that it has changed.

Chris Grayling: I will press the Minister on this point, which is hugely important for the universities. Does he believe that the plans will set out broad parameters for action by a university, such as by its saying, ''We've identified within our region certain social groups that are under-represented, and we will take steps through better marketing, and so forth, to attract applications from those groups'', or is it his intention that they will say, ''We will run these nine specific activities, timetabled and set out in a detailed structure''? Which of those two models is the plan supposed to be? If it is the second, does the Minister accept that the burden of bureaucracy on universities seems to be extraordinarily onerous and inflexible?

Alan Johnson: As we said in a debate last week, the Bill provides a light touch, but not a soft touch. Paragraph 7 of the guidance says:
 ''It will be for you''— 
the director— 
''to decide, depending on the scale or extent of the change . . . whether to call in the whole access agreement for reconsideration.'' 
People must be informed of changes to the plan, which might mean a simple exchange of correspondence thanking someone for saying that a part of the plan has changed—end of story. Increasing the fee cannot apply to students already in the system, but if, for 
 instance, it is decided after three years that the fee should be increased from £2,000 to £2,500 or to £3,000, the regulator will want to assure himself or herself that the additional money going back into bursaries and grants is properly reflected. 
 Universities and higher education institutions can put more into a plan than is necessary. We are looking for a light-touch approach, but the whole point of our debate is who has the authority to change the plan.

Patrick Hall: Does my right hon. Friend not agree that the institution in question will want to improve its agreement to widen access, given the likely circumstances? Having secured the agreement of OFFA and publicised agreement of the overall plan, the institution will be pleased to publicise the relevant information. In the context of a light touch, that would mean a letter or perhaps a few phone calls. The institution would have the opportunity to say, ''We're putting forward these amendments, but they are wider than just this institution. They are being introduced in the context of which OFFA approves.'' That would therefore be seen as a positive thing to say.

Alan Johnson: My hon. Friend is absolutely right. The major concern is, as he and the hon. Member for Westmorland and Lonsdale rightly said, who has the authority to change the plan. Provided that there is a sensible system, there should be no problems whatever. The institution may wish to change its fee levels or bursaries. We think that it is right that the institutions should have the option to apply to the director, so that they can make such changes and the director will have to be satisfied with the access arrangements in the plan.
 Some changes, as we have discussed, will be relatively small, such as outreach to a new area or a small requirement to the bursary scheme, and therefore will not cause the director any great concern. However, the director may want to examine in more detail with the institutions variations such a significant rise in fee levels—within the cap, obviously—or a wholesale change to a bursary scheme. It will be for the director to decide how light touch he or she should be, depending on the circumstances.

Tim Collins: The Minister is right that the sector is concerned about who has the final authority and he has given some helpful clarification on that point. However, the clause says that regulations about how the system operates may be made. The sector would therefore further welcome a guarantee from the Minister that the relevant decision would indeed be up to the director and that no regulations either now or in the future would give the Secretary of State a right to overturn a director's decision relating to approval of a variation.

Alan Johnson: I can give that assurance. The task in question is the job of the regulator. Incidentally, the hon. Gentleman asked me in a previous debate whether I would reassure the Committee that OFFA would not interfere in individual cases. I can give that
 reassurance. Provided an agreement is in line with the legislation, we do not intend the Secretary of State to be involved in any individual case.
 The draft regulations provide more detail about the process to be followed by an institution and by the director if an institution wishes to vary its plan. Institutions may allow some variation in their initial access plan, such as building in at the outset changes to the fee and bursary levels over the lifetime of an access plan, so that a student is fully aware, when they go to that university, of what the arrangements will be over the three years—if it is a three-year degree course. In deciding whether an institution can vary its access plan, the interests of its current and prospective students will be paramount. 
 I draw the attention of hon. Members to paragraph 7 of the draft guidance from the Secretary of State, which makes it clear that a key principle of varying access plans 
''should be that students should know, before committing to a course, what fees they can expect to be paying. Students should be protected against institutions changing fee levels where the possibility of that change has not been notified to the student cohort before they committed themselves to the course.'' 
Having clarified the position, I hope that my hon. Friend the Member for Chatham and Aylesford will withdraw his amendment in the knowledge that what he seeks to achieve is already provided for in the Bill. The firm assurances that I have put on the record mean that there can no longer be any doubt about who is responsible for changes to the access plans.

Jonathan R Shaw: I am grateful for the comments made by my right hon. Friend the Minister. He has provided the reassurance that Universities UK and I sought—that is that institutions alone can vary the plan. If there is a departure from the agreed plan, it is reasonable that the institution should then return to the regulator to seek permission for that change. As the Minister said, such a change might be minor or major. As my hon. Friend the Member for Bedford (Mr. Hall) said, recourse to the regulator should be seen in a positive way, because one of the purposes of the regulator is to spread good practice. The Minister is not sinister in this context—[Interruption.] Or in any other context, despite what was implied by the usual assortment of highly emotive words used by the hon. Member for Westmorland and Lonsdale. We heard from him that the Secretary of State might take offence, might engage in a vendetta, or that if OFFA was his plaything, he might use it as a weapon. That is the weird world of Westmorland.
 I hope that the Committee was reassured by the sound words from my right hon. Friend the Minister and that the debate has been useful in providing clarification. It is important that we get OFFA right, and that the universities understand both what we mean by OFFA and what the expectations of institutions' relationships with it are. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Motion made, and Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 19, Noes 2.

Question accordingly agreed to. 
 Clause 34 ordered to stand part of the Bill.

Clause 35 - Enforcement of plans: England

Graham Allen: I beg to move amendment No. 231, in
clause 35, page 16, line 19, at end add—
'(3) No plan is to be enforced against the relevant institution except as provided for in this section.'.

Roger Gale: With this it will be convenient to discuss the following: Amendment No. 232, in
clause 36, page 16, line 39, at end add— 
 '(5) No plan is to be enforced against the relevant institution except as provided for in this section.'.

Graham Allen: I hate to leave anyone with the impression that I have it in for the vice-chancellors. The fact that their connections with No. 10 Downing street almost led my party to breaking point two or three weeks ago to satisfy their requirements should not be seen as causing me to have hard feelings. Therefore, despite what I said last week about them having to be subject to Ofsted like everyone else in the education system, I want to do Universities UK a favour by moving the following amendment. I hope that I will be back in its good books because there is a great deal for us to work together on.
 Universities UK seeks to ensure that, while plans are meaningful and can be enforced, they do not expose institutions to additional litigation, which would waste valuable resources. Institutions must also rely on the judgments of the relevant authorities without fear that they may be undone by litigants challenging compliance with the plan. There is an enforcement regime laid out in the Bill, and the amendments promote the idea that that regime should be made exclusive. I would be grateful if the Minister could respond to the points raised by these probing amendments.

Tim Collins: This is proving to be a morning of surprises. First, the Minister accepted an amendment tabled by the Liberal Democrats, and now I am in the fairly unusual position of supporting an amendment tabled by the hon. Gentleman. I am not sure whether he will get back in the good books of the vice-chancellors after his preamble. If he had not said that preamble, he might have been the toast of the vice-chancellors this evening, but perhaps not now.
 None the less, the hon. Gentleman made an important point. It is an unwelcome but unavoidable feature of today's society that we are more litigious. People are more likely than in previous decades to sue for all sorts of, sometimes apparently flippant, reasons. That can cause disruption, additional cost and worry for, in this case, vice-chancellors and others responsible for the governance of higher education institutions. It is worth reiterating that Conservative Members believe that there should be no procedure for enforcing access plans and we are not in favour of having a director. We are in favour of higher education institutions entering into voluntary access plans, but we are not in favour of an element of compulsion or direction. If there is to be an element of enforcement, it must be done, as the hon. Gentleman said, by the director or—although this goes against the grain—by the Secretary of State, but not by anybody else. 
 We heard from the hon. Member for Cambridge of a concern expressed by the Association of Colleges in a different context about the possibility of a law student going to court because of a concern about fee structures. If anybody will exploit a more litigious world, it will be a law student. The same could apply in this case. If an individual, whether a student, parent or potential employer, believed that an access plan had been violated or that by taking legal action they were more likely to achieve their objective of, say, admission to a particular university, it is possible that that gap might remain if the amendment is not accepted. 
 It would therefore be helpful if the Minister could make it clear that he is prepared to accept the amendment, which has much to commend it. He supported an Opposition amendment this morning, so it may be even easier for him to accept an amendment tabled by one of his hon. Friends, particularly one who is seeking to be so helpful today, as he is on all other days.

Phil Willis: Is the hon. Gentleman saying that if variability is allowed to reach the point at which there are American-style fees of £30,000 or £40,000 for a course lasting a few years or more, students will be prevented from having redress against an institution for failing to provide the quality of education that such a cost determines, particularly if we got to the point where half the students pay full fees, as has happened in Australia—

Roger Gale: Order. This is an intervention, not a mini-speech. Interventions should be relatively brief.
11 am

Tim Collins: The hon. Gentleman is right to be worried about a scenario in which the fees are not £3,000 but £15,000 or £20,000—I think he quoted £30,000 or £40,000. The way to prevent that from happening is not to have fees at all. The question is not whether the fees should be variable, but whether we should have them. We believe that we should not.
 It is not desirable for us to promote the means whereby individuals can sue many of our public institutions. That is a problem not only in higher education, but in the health service and state education as a whole. It is also a problem in the police service. There is much too much suing and Governments of both parties must accept responsibility for having helped to create that climate. The ambulance chasing and the fact that so many people in the public services spend their time looking over their shoulder, worried about what might happen if someone were to bring legal action against them, is the parallel with America that concerns me. That is why I support the amendment, not because it is desirable to have heavy-handed enforcement of the plans, but because if someone is to enforce them, that should be done in a predicable way by an organ of the state. We do not want a large number of other people running around, acting unpredictably, while trying to find a sympathetic judge to make a ruling that could cost an enormous amount of money. That would create complexity and difficulty, not only for the institution against which the case was brought, but for all the other institutions that would have to be worried about the precedent that had been set. 
 I hope that the Minister will accept the spirit, if not the terms, of the amendment. For all I know, it may be technically flawed. Those of us who do not have the benefit of the superb civil service that the Minister rightly has at his disposal understand that we may draft technically flawed amendments for one reason or another. I hope that he will be prepared to consider ensuring that only the director or, if push came to shove, the Secretary of State can enforce the plans. The sector would welcome clarification of that. If he cannot accept the amendment and thus provide that clarification, will he address, perhaps in correspondence, the way in which that could be achieved? I think he will acknowledge that this is a genuine concern.

Phil Willis: I accept what the hon. Gentleman said about the ambulance-chasing culture. The reality is that students will pay an increasing amount towards their higher education and it is possible that the sums involved will be significant. If OFFA agrees a plan under regulations set by the Secretary of State through HEFCE, will the Minister assure us that the Government, as the controller of the plan, rather than the institution, will indemnify any action taken by an individual student against a university in relation to the plan?

Alan Johnson: I hope that I can give the Committee the assurance that it seeks. My hon. Friend's amendment would make it explicit that the director in
 England and the designated authority in Wales could enforce plans only in accordance with the powers in clauses 35 and 36 respectively. I am in a kindly, giving mood today, but, unfortunately, I cannot accept the amendment, even though I accept much of his advice on such issues, because the Bill provides for no enforcement powers other than those in clauses 35 and 36. I do not oppose the principle behind the amendment, but it is unnecessary. Let me reassure the Committee by setting out in some detail why that is the case.
 Access plans in England will be enforced by the director, who will direct HEFCE or the Teacher Training Agency to impose a financial sanction on the institution and/or director who refuses to renew an institution's access plan. Those—and only those—are the sanctions that the director can apply if institutions breach their access plans. The director will have to comply with provisions in regulations on enforcing plans. 
 Let me clarify the concern that institutions might be exposed to enforcement on two fronts—from the director or from a student issuing a complaint. I assure my hon. Friend that, although the plan will benefit students considerably and will rightly be a public document, it will not give students or prospective students additional legal rights. Enforcing the plan is a matter between the director and the institution. Student complaints will be based on their contract with the institution, and the plans will not give students or prospective students new legal rights. Nor do they relate to the quality of the student experience, to take up the point raised by the hon. Member for Harrogate and Knaresborough. In fact, part of the White Paper process is the issuing of the new, comprehensive student guide, which will make clear the quality of each course at each institution, as judged by final-year students the year before the applicants apply. There will, therefore, be measures of quality, but the issue of quality will lie outside the access plan and students will be able to complain about quality in the way that they do now.

Phil Willis: The Minister makes an important point, but part of the access plan may relate to the quality of support that the university offers students from less traditional backgrounds. Therefore, the contract between the student and the university—I accept that this is much broader than the plan—would include that element. Would a university that offered a daily tutorial that did not take place be breaking the contract and be subject to a sanction other than through the relevant funding council?

Alan Johnson: I want specifically to explore such examples. That is why I need to take a little time over this important amendment.
 In the unlikely event that matters such as those that the hon. Gentleman raised came to court under procedures other than those in the Bill, we have every expectation that the court would take account of any enforcement action that the director had already taken and judge accordingly. Let us imagine that an institution does not provide the bursaries that it said it 
 would in its plan. That would be a breach of the plan and would be a matter for the director to consider. One sanction open to the director would be to withhold the grant until he was satisfied that the institution had made good, or substantially good, its breach of the plan. Once it had done that, the grant would be restored, so restitution to the student is an important part of the process. Likewise, in deciding about enforcement action, the director would have to take account of any court judgment that may have been made. 
 Let me give the Committee an example of how sanctions could work in practice. I appreciate that it does not relate to the specific point about the tutorial, but it deals with the area in which disputes are likely to arise. If an institution had an access plan that allowed it to charge its students £2,300 and then charged £3,000 without varying its plan, the director of fair access, having advised the institution of his intentions, would have the following sanctions available to him. These are all set out in either the regulations or the draft guidance from the Secretary of State. 
 First, the director could direct the relevant funding council to reduce the institution's grant by 110 per cent. of the total amount by which fees were overcharged. That would be restored to the institution when it had made good the breach. Secondly, the director could direct the funding body to impose a financial sanction by reducing the institution's grant by up to £500,000. Thirdly, the director could refuse to renew the institution's access plan. 
 We appreciate the need for clarity and transparency in describing how plans will be enforced by the director of fair access in England and the designated authority in Wales. Although amendment No. 231 is well intentioned, it would not add to the clarity already provided by the Bill and our draft regulations 10 to 15, which should be read in conjunction with it.

Tim Collins: The Minister set out a particular example, which I want to extend. He described circumstances in which a higher education institution had breached its plan, and he talked about the options that would be available to the director to enforce the plan and bring the institution back into compliance with it. Does he not accept that the director would be subject, as many other organisations and institutions are, to the process of judicial review? If the director chose not to use one or more of the options, it would be open to a student who felt himself to have been disadvantaged to go to court to seek an instruction against the director to act. Is there not such a route for the individual student, irrespective of what the Minister said about the role of the director?

Alan Johnson: I do not agree. We have been careful to ensure that the access plan is an agreement between the institution and director. We considered judicial review in deciding whether there should be an appeals process between the institution and director if the access plan was rejected, but we decided that it would build in delay and bureaucracy and that, in any case,
 the institution had access to judicial review if it felt so strongly about the issue. I cannot predict what individuals will try to do through the courts, but we can be assured that the Bill is clear about who has the power of enforcement: the director.
 If we kept the regulator out of Wales, we could give Offa's dyke a completely new meaning—I have been waiting to use that one, Mr. Stevenson. However, on amendment No. 232, I repeat that the Welsh Assembly has not decided whether it will introduce variable fees after 2007. It is important to say that because we may not have time to discuss related issues. Should variable fees be introduced in Wales, however, the Bill provides a framework for the Assembly to implement variable fees. That includes powers to designate an authority to agree fee plans and undertake a similar role to that of the director in England. The exact mechanisms for agreeing and monitoring the plans have not been determined and will be tailored to meet specifically Welsh circumstances, and the Bill allows the Assembly the flexibility to determine the appropriate authority to approve and monitor plans. 
 In practice, the relevant authority in Wales could refuse to renew a plan in respect of an institution that had, for example, charged fees that were higher than the permitted amount. Additionally, financial sanctions set out under the enforcement measures in clause 36 could be applied. The same argument applies: we do not believe that in England or Wales there is any chink in the armour as far as this legislation is concerned, and we are clear that enforcement lies with the director. We think that the amendments are unnecessary, and I urge my hon. Friend not to insist on them.

Phil Willis: Will the Minister clarify that the only enforcement that the Government are putting into the Bill is where the fee or bursary structure is not part and parcel of the agreed plan? The other elements of the access plan, which are to ensure not only access to but, we hope, retention within universities, have nothing to do with the enforcement plans, and no student would have redress in that case.

Alan Johnson: I want to be helpful. The hon. Gentleman was not here, but we discussed the fact that the regulator has the power to issue sanctions where the access plan is breached. HEFCE has the power to issue sanctions, having worked closely with the regulator, where the fee cap is breached. That is a matter of degree, so I guess that the heinous crime would be the sort of situation to which the hon. Gentleman referred: if a university decided that it would introduce what he, and everybody else, understood in 1998 to be the definition of top-up fees. We are not proposing that here. The Government have set a maximum fee of £3,000, but if the university decides that it will not receive any student support, but will top it up to whatever level that it likes, that will be a serious breach, in which circumstances the regulator and HEFCE will have a serious punishment reserved to them.
 Circumstances such as the hon. Gentleman described, for instance if an institution said that it would have a summer school in June, but did not do so—possibly for some perfectly valid reason—would not be treated as seriously. That would be a breach of the access plan, but would be in a completely different ballpark to breaching the fee level. I hope that that is helpful; we have certainly discussed the matter at great length in relation to other amendments.

Graham Allen: The Minister is clearly determined to make us an offer that we cannot refuse, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 35 ordered to stand part of the Bill.

Clause 36 - Enforcement of plans: Wales

Question proposed, That the clause stand part of the Bill. 
 Chris Grayling: I belatedly add my pleasure at seeing you in the Chair this morning, Mr. Stevenson. Thank you for standing in at such short notice. 
 After virtually the entire Committee process, we finally reach a point at which we can discuss Wales. It is a pleasure to see the spectre at the feast, the Under-Secretary of State for Wales, who has been a regular attender but who has not yet had the opportunity to debate the issues that concern him. We arrive at this issue rather belatedly, because we have already had guillotined the whole process of the devolution of powers to Wales, as well as the issue of the likely reality of English students in Wales paying higher fees than, for example, students from elsewhere in the European Union. We have an opportunity here to discuss OFFA's role in Wales, and whether there should be separate arrangements for Wales. 
 I shall be brief, as I want to hear the Minister's perspective on this. It is clear, and inescapable, that several issues will arise in respect of OFFA's powers in Wales. For example, having separate arrangements for England and Wales will create 
 an additional bureaucracy, which will inevitably mean a further cost to the taxpayer.We must consider, too, which students will be covered by the plans that the relevant authority will have the power to enforce in Wales under clause 36. Generally speaking, Welsh universities do not provide an education only for Welsh students; for example, 75 per cent. of students at the university of Wales, Aberystwyth are from England. The key question is where the plans will be applied and how the arrangements will work. If there is a regulator with a remit based on regulations passed in this House, and a regulator with a remit based on regulations passed by the Welsh Assembly, will enforcement of the plans apply in the case of activities in Wales to those students from England who attend Welsh universities? How will Welsh universities that draw a substantial part of their student cohort from England be treated? Where will the responsibilities stop and start? 
 There will also be issues in relation to the powers of the relevant authority to dictate through regulations, conditions and guidance in respect of the charging of fees, but there may be a huge disparity between the fees charged in England and those charged in Wales. How will that work? Entirely different fee regimes may operate on either side of the border, which will give rise to concerns about the differential treatment of English students and Welsh students at Welsh universities. How, therefore, will the access regulator be able to define and enforce plans that operate in such a confused and difficult environment? We have no sense of how the Government will address those issues, and it is time we did. 
 I hope that you, Mr. Stevenson, and your co-Chairmen will refer to the Speaker the fact that so little time has been available for the Committee to debate Welsh issues. Let us take advantage of the couple of minutes left to listen to the Government's views on the matter. 
 The Chairman: In respect of the hon. Gentleman's request, my co-Chairmen and I are constrained by the Committee's decision on the programme resolution. 
 Mr. Allen: If you take up that offer to talk to the Speaker, Mr. Stevenson, I hope you will bring to his attention the time wasting that occurred in four or five of our sittings. 
 The Chairman: We are nearly there now. I could drag it out, if you like, but I am sure that is not what you like. I repeat: the Chairs of the Committee are constrained by the programme resolution, which has been agreed, and have a responsibility to apply it, and that is what we shall do. 
 The Parliamentary Under-Secretary of State for Wales (Mr. Don Touhig): I welcome you to the Chair, Mr. Stevenson. 
 I say to the hon. Member for Epsom and Ewell (Chris Grayling) that it is not true that we have guillotined discussion of the transfer of student support in Wales—it is in clause 41. I hope that we shall have a full debate on the matter later today. He referred to my presence in the Committee. He may recall—perhaps he prefers to forget—that the Opposition moved an amendment to clause 21 and made a hash of it, so perhaps that is why they do not want to remember that we discussed Welsh matters earlier. 
 Clause 36 and the associated clauses provide flexibility for the Assembly to require institutions to have plans to regulate the use of the new powers, should the Assembly decide that it will introduce variable fees in Wales. It will be important to take account of clauses 25 and 26, which are part of the package to enable the Assembly to have the powers that we are giving to the Secretary of State in England, so that should a decision be taken to have variable fees, the mechanisms will be there to regulate the package. 
 The Assembly Minister for Education and Lifelong Learning has announced a review to be carried out by Professor Teresa Rees, which will report by April 2005. If— 
 It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to the Sessional Order D [28 June 2001 and 6 November 2003] and the Orders of the Committee [10 February and 2 March], to put forthwith the Question already proposed from the Chair. 
 Question agreed to. 
 Clause 36 ordered to stand part of the Bill. 
 The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clauses 37 to 38 ordered to stand part of the Bill. 
 Adjourned till this day at half-past Two o'clock.